1. This appeal arises out of a suit in ejectment.
2. It has been found that the land in question was originally the homestead of one Lobai Chang, a cultivating raiyat, who held the same as part of his non-transferable occupancy holding.
3. Having sold the other portions of his holding he next proceeded to sell his homestead to the defendant on 23rd Kartic 1304=8th November 1897. The land in question is situated in Chashara, a Mauza lying within and now forming what may be described as a residential suburb of the Municipality of Naraingunj. The defendant is a Pleader practising in the Civil Courts established in that Sub-Divisional head-quarter.
4. It has been held by the Courts below that having purchased from Lobai, the defendant next secured from the landlords their recognition of his purchase, and have thus acquired in the land the rights of an occupancy raiyat.
5. On behalf of the landlord appellant it has been contended before us that the arrangement between the landlord and the defendant should have been and should be regarded not as a recognition and an admission into an existing tenancy but as a new settlement, that the tenancy thus created is one governed by the provisions of the Transfer of Property Act, and not being of a permanent nature terminated on the expiry of the six months' notice to quit served upon the defendant, that is, at the close of the year 1322.
6. The facts upon which the Courts below have relied are as follows:
7. Lobai was a cultivator and had the rights of an occupancy ray at in his holding and in the homestead (11/2 big-as house and garden) forming part the of. The purchase by plaintiff from Lobai has been proved. Nazar or salami was paid to and accepted by the landlord. The arrears of rent due from Lobai were also paid by the defendant. His name was mutated or substituted in the landlords' papers in place of Lobai's name. Plaintiffs' witness No. 2, whom both Courts have believed, deposed that at the time of the recognition or settlement what right the defendant should obtain thereby was not specified, he should have such rights as under the circumstances the law might give him. The dakhilas granted to the plaintiff since 1897 are in the form prescribed by the. Bengal Tenancy Act, and the tenancy is described therein or in most of them as a karsa, a term usually applied to an agricultural holding.
8. On behalf of the landlord-appellant it is contended that the Courts below should have had regard to or laid more stress upon other facts in the case such as the following. The homestead was the last remaining portion of his holding, and on its transfer the landlords were entitled to re-enter. It was known that the defendant, was a Pleader, and was taking this homestead for purpose of residence and of carrying on, not any form of agriculture or horticulture, but the practice of he profession as a Pleader in the Local Courts. The rent previously payable was quadrupled. Entries in the landlords' papers are for his information and for the purpose of preserving a record of the history of the holding, and are not of importance for the purpose of showing the right acquired by the new tenant. The arrears due from Lobai when paid by the defendant should be regarded as part of the salami or premium: The deposition of plaintiffs' witness No. 2, believed by both Courts, shows that the incoming tenant was not admitted into the rights of Lobai and so far from supporting the case of recognition negatives that case and shows that the agreement was a new settlement.
9. Having given to the case our careful consideration we are of opinion that the inference legally deducible from the facts found or not disputed in the present case is that the defendant having bought out Lobai was not admitted by the landlord into the tenancy and the rights previously held by Lobai but obtained from the landlord a fresh settlement or a new tenancy. We are of opinion that the Courts below have been misled by the use of the terms 'tenant', 'tenant-at-will' or 'tenancy at will,' and by the attempt made at one time by the landlords, or their agent to introduce the words Swecckadhin or tenant at-will, into one of the dakhilas granted to the tenant. These words have been wrongly used for a tenancy terminable on a proper notice to quit, for instance, the six months' notice terminating with the close of a year of the tenancy actually served upon the tenant in this case.
10. The Courts have further overlooked the Significance to be attached to the fact that on the settlement with the defendant the rent previously payable was quadrupled. The Court of the first Appeal makes no reference to this fact and the Court of first instance but casually alludes to it, yet by itself and certainly taken with the other facts this is inconsistent with any admission of the defendant into the occupancy rights previously held by Lobai.
11. We, therefore, hold that the defendant's tenancy is not a continuation of Lobai's tenancy but originated in a new settlement with the landlord in the year 1304. It has been found by both Courts below that the lease since taken by the defendant was taken not for purposes of agriculture or horticulture but for residential purposes and in order to the practice of the defendant's profession as a Pleader in the Local Courts.
12. The tenancy is, therefore, governed by the provisions of the Transfer of Property Act and has been terminated by the notice to quit duly served, as is not disputed before us, on the defendant. In support of our view as to the nature of the defendant's tenancy we may refer to the cases reported as Rakhal Das Addy v. Dinomoyi Debi 16 C. 652 : 8 Ind. Dec. (N.S.) 430; Raniganj Coal Association Limited v. Judoonath Ghose 19 C. 489 : 9 Ind. Dec. (N.S.) 770 and Umrao Bibi v. Mahomed Rojabi 27 C. 205 : 4 C.W.N. 76 : 14 Ind. Dec. (N.S.) 136. It was suggested on behalf of the defendant that if the plaintiffs' contention succeeded there should be a remand to the Court of first Appeal in order that the defendant's claim to compensation for improvements should be determined. This question was not raised in the Court of first Appeal and was decided against the defendant in the Court of first instance. A remand is not necessary. The defendant may remove his structures and for this purpose a period of four months will be allowed to him from this date. In these terms this 'appeal and the plaintiffs' suit are decreed.
13. Parties will bear their own costs throughout this litigation.